The
Campaign to Discriminate Against
Independent and Minor Party Voters

In late1998,
NSW Liberal Senator Helen Coonan, the
Government Deputy Whip in the Senate,
gained publicity for questioning the way
the Senate was operating, initiating
debate over the role it should play, and
canvassing possible options for changing
the way it is elected. Her widely-reported
speech to The Sydney Institute
on 3rd February was said to strongly
reflect the Prime Minister's views.

Senator
Coonan asserted that in recent years minor
parties in the Senate have re-interpreted
a balance of power role as giving licence
to re-arrange the policies presented by
any government with a substantial House of
Representatives majority, and to engage in
the ‘culture of confrontation’ rather than
‘keeping the bastards honest’. She
suggested, ‘to enhance the strength and
stability of government’, that there
should be a threshold of first preference
votes for parties and independents, below
which candidates would be excluded at the
outset of Senate scrutinies and their
votes transferred to those who had jumped
that hurdle.

She did not
specify a preferred level for the
threshold, but her paper, The
Senate: Safeguard or Handbrake on
Democracy?, listed
consequences at recent elections of using
one of four examples: a threshold of 5 or
10% of first preferences, or 50 or 80% of
a quota, respectively. In her haste to
threaten to reduce the number of
independent and minor party senators, she
did not analyse the predictable
consequences of such a scheme. She said
‘obviously expert advice would be
necessary to conduct a thorough analysis
of the impact of a threshold system, but
conceptually it offers the possibility of
a solution to the rule of minorities that
has so characterized the Senate in recent
years’.

The
rudiments of an informed answer are to be
found in her paper, but she did not
consider whether such a distortion of
voters' wishes was at all likely to
produce a government majority in some
State as she intended. Her paper notes
that with six vacancies at a time, a party
will normally require over 57% of the vote
after preferences to secure four places.
Senator Coonan appears not to have
contemplated long over whether knocking
out various candidates at the outset makes
this more likely at times than the other
major party getting to 43% of the vote and
taking three places.

A moment's
careful thought about historical voting
patterns shows that, to adopt her
terminology, ‘for practical purposes
effective power’ would almost certainly be
‘concentrated in the hands’ of even fewer
people, or alternatively government and
opposition numbers might be equal, with
neither grouping being able to pass
contentious motions in the Senate, as
votes are lost unless a majority of
senators support them. The intense
promotion of such an obviously
self-defeating scheme therefore raises
questions about whether the impact most
desired from it might be to influence
voting behaviour in the Senate in the
short term.

The PRSA’s
submission to the Joint Standing Committee
on Electoral Matters after the 1996
federal election indicated that thresholds
were incompatible with the principles
behind quota-preferential systems, and
pointed out that, had there been a
threshold at 80% of a quota, ‘Labor would
have had an additional third senator
elected’ in the 4 States where a
successful Australian Democrat or
Tasmanian Greens team began with fewer
than the ‘required’ first preferences. It
also noted that in Tasmania
the Australian Democrats fell just 64
votes short of 50% of a quota, and their
supporters would have justifiably
complained about the legitimacy of the
electoral process had they been
arbitrarily excluded.

As the 1996
results showed, Australian experience is
that a 3-3 outcome will almost certainly
occur in any State when an up-front
distortion of voters' wishes arbitrarily
excludes all independents and minor
parties. In those circumstances, the odds
of one or two senators (who achieve a
quota in their own right or come very
close) sitting between two blocs that will
often simply oppose each other for
tactical advantage, or alternatively of a
Senate evenly-divided, and thus at a
standstill, increase dramatically.

At the 1998
general elections, there were three
instances - Labor (in NSW and Tasmania)
and Liberal or Coalition (in SA) - where
major parties barely surpassed 40% of
first preferences. Consequently, there is
no way that application of one of the
arbitrary distorting thresholds considered
by Senator Coonan would have produced a
4-2 outcome.

Furthermore,
the Australian Democrats were within 3,000
votes of a 10% threshold in Victoria, and One
Nation was also closer than that in South
Australia, but
neither party could boost its start to a
quota during the scrutiny. Exclusion of
either of these candidates at the outset
of the scrutiny would have drawn strong
and protracted public criticism, and could
have cast widespread doubt about the
legitimacy of the outcome.

Despite her
conclusions being utterly flawed and more
likely to produce situations of which she
complains, and her avoidance of discussing
the events of 1973-75 or previous
occasions on which the two Houses were
extensively in conflict, it is important
to note that Senator Coonan recognized
that there were other ways of seeking to
achieve her stated goals, but discarded
them as unachievable or undesirable. For
instance, she observed that ‘part of the
problem lies in the intense political
brinkmanship that characterizes modern
political parties. It provides a Senate
Opposition, implacably opposed to a
Government's agenda, that effectively
hands the casting vote on national
legislation of immense importance to the
minor parties and independents.’ She
touched on knee-jerk Opposition behaviour
elsewhere, but the theme was not
developed.

She said
that the 1959 Joint Committee on
Constitutional Review, in reporting ways
of resolving deadlocks between the Houses,
had urged removal of the nexus between
their sizes, and proposed different
procedures for money Bills from those for
other Bills. In her eyes, earlier failure
to achieve constitutional change made the
prospect ‘remote’ of ‘any far-reaching
constitutional reform to the Senate's
powers’, but even if it could be done, ‘it
would not address the fundamental problem
of disproportionate power concentrated in
the hands of a few’.

The paper
notes that reverting to the pre-1983 size
of the Senate would lift the quota (and
more significantly, make 50% plus one
vote, rather than 57% of the votes, the
target for winning a majority of places in
any State). However, Senator Coonan
indicated the political reality is that
‘politicians are not going to willingly
vote themselves out of existence any time
soon’ and that with the combined Senate
vote for Labor and the Coalition being
around 75% in 1998, ‘it is by no means
certain that a government would obtain a
majority in this event’. The possibility
of increasing the size of the Parliament
to achieve an odd number of vacancies
ordinarily in each State, requiring
another series of major House of
Representatives redistributions, was
dismissed as ‘hardly a palatable
proposition for voters in the current
climate’.

She then
rejected the proposals by former Liberal
Party Federal Director Andrew Robb for
regional single-member electorates (as in
Victoria,
where there is hardly an Opposition to
speak of in the Legislative Council) or
other suggestions to divide States into
multi-member electorates each ordinarily
returning very small numbers of senators.
Ultimately her belief was that, especially
when one in four or five voters does not
strongly support either major party,
proportional representation is important
in introducing ‘a broader coalition of
interests and a more diverse
representation of opinion in the Senate
Power-sharing and consensus-building is to
be commended if it results in
harmonization of viewpoint. The problem
arises however when minor parties insist
on a share of power out of all proportion
to their numbers and electoral support.’

This series
of assessments led Senator Coonan to the
observation that many European systems of
proportional representation have threshold
requirements for election. She seemed
completely unaware that those systems are
non-preferential and pay no heed to the
extent of overall vote wastage with their
particular variation of allocation
formulae based conceptually on average
numbers of votes, usually moulded by
anomalies experienced in practice.

In her view,
‘no voter would be disenfranchised by the
imposition of a formal threshold’ as
ballot-papers for candidates with
insufficient votes would immediately be
re-examined and re-allocated to the first
available preference for candidates deemed
to have climbed above the threshold.

Most
impartial observers would see a heavy onus
falling on any proponent of setting aside
voters' expressed wishes to justify such
patronizing behaviour smacking of the most
authoritarian aspects of ‘guided
democracy’.

The PRSA's
1996 submission pointed out the appalling
experiences with thresholds in South
Australia in
the 1970s, and in the ACT with its d'Hondt
system, and various ways in which a few
votes determined whether the outcome was
widely viewed as a major distortion of
voters' wishes. With the increasing
tendency for smaller parties to put the
largest ones last on registered Group
Voting Tickets, any further drop in the
combined vote for Labor and the Coalition
could lead to a party (or inherently
discordant grouping of parties contrived
for the sole purpose of getting above the
arbitrary threshold) clambering just above
the threshold, and achieving two seats -
causing widespread public disquiet.

At the time
when Senator Coonan's proposals were
aired, PRSA President Bogey Musidlak wrote
to metropolitan newspapers and magazines
indicating that, apart from the proposals’
lack of moral legitimacy, they had no
prospect of achieving the State Senate
majorities being sought. Instead, real
Senate electoral reform could only come by
ordinarily having odd numbers of
vacancies, by introducing Robson
Rotation to spread
the vote for larger parties and to avoid
premature exclusion of some of their
candidates, and by parties focusing on
articulating better policies and endorsing
candidates with whom voters could
identify.

The Senate
Opposition Leader, Senator Faulkner, said
that the Liberals came to the debate ‘with
blood on their hands’ after their
obstructive behaviour during the Hawke and
Keating Governments, and the way in which
they brought down the Whitlam Government.
Senator Coonan's proposals would ‘pollute’
proportional representational voting, and
re-inforce that unrepresentative aspect of
the Senate produced by its having equal
numbers of senators from each State. While
the Labor Party would not be supporting
any such scheme, it was however prepared
to enter any serious debate about the
powers of the Senate.

Australian
Democrats spokesman on electoral matters,
Senator Andrew Bartlett, attacked the
proposal as an attempt to ‘chloroform
Parliament’. He said, ‘at the centre of
Senator Coonan's call for a threshold vote
in the Senate is the abhorrent notion that
citizens can be discriminated against
because of their political beliefs’. He
viewed as ‘offensive’ the idea that ‘over
two million people who did not vote
Liberal or Labor in October should have
lesser rights to representation than other
Australians’.

Prior to the
1998 general elections, the PRSA’s
Victorian, NSW and SA Branches canvassed
issues related to the Senate voting system
with Senate and certain Lower House
candidates. No respondents indicated any
planned changes. Liberals Barry Wakelin
(Grey) and Neil Andrew (now Speaker) each
indicated that they knew of no plans to
change the system, and the Labor Party
also indicated it did not foresee change.

It is
important to demonstrate that ‘threshold’
ideas are completely without merit, and
have already been proven so in Australian
experience, each time such ideas are
floated.

The
1999 NSW Upper House Poll

The March
polls for the vacant half of the seats
in the New South Wales Legislative
Council again resulted in neither
Government nor Opposition parties
gaining an absolute majority of those
21 seats. A record 264 candidates
stood. As the whole State is a single
electoral district, the quota for
election is just under 4.55% (161,717
votes). The record number of parties
or groups, 80, resulted in a large
ballot-paper, dubbed ‘a tablecloth’, being the
largest ever used in Australia
in a public poll. No candidate or
party gained even 38% of the 3,557,762
first preference votes votes cast, let
alone an absolute majority. The six
candidates not members of a registered
party gained only 801 votes. Despite
the liberal formality provisions
(either a party box above-the-line
or at least 15 preferences below-the-line),
there were 274,594 informal votes
(7.2%). Only 3.8% of the formal votes
were marked below-the-line.

The Liberal-National
Coalition’s share of the
state-wide vote (27.39%) was only
77.5% of the combined 35.35% vote of
all those voters (more than one in
every three) that had voted for
neither the Government nor the
Coalition. The parties that are
‘serious’ contenders for government
gained together 64.65% of the vote,
and two-thirds of the seats. The table
below shows that more than one third
of the voters that spurned those
‘serious’ contenders gave one third of
the seats to candidates of other
parties.

Party

Percentage of First Preference
Votes (%)

Percentage of Seats (%)

Ranking of Parties in First
Prefs.

Australian Labor Party

37.26

38.10

1

Liberal-National

27.39

28.57

2

One Nation Party

6.34

4.76

3

Australian Democrats

4.01

4.76

4

Christian Democrats (Fred
Nile)

3.17

4.76

5

Greens

2.91

4.76

6

Shooters

1.67

-

7

Progressive Labor

1.58

-

8

Reform the Legal System

1.00

4.76

10

Unity

0.98

4.76

11

Outdoor Recreation

0.20

4.76

30

Others *

13.49

-

-

These 69
parties and 6 independents each had
1.3% of the vote or less.

The number
of cross-bench MLCs went from 9 to 13.
There are now as many cross-bench MLCs
in the full Legislative Council as there
are Coalition Opposition MLCs.
The ALP Government has only 16
of the 42 MLCs By contrast, in the
larger Upper House in Victoria,
a State with only 67% of NSW’s
population, but with a highly
unrepresentative winner-take-all
electoral system, the Government has 34
MLCs, the ALP Opposition 10
MLCs, and there are no cross-bench or
other MLCs whatsoever.

Despite
that contrast, commentators expect the
Carr Government’s legislation to be
carefully reviewed, but not greatly
blocked or distorted. The cross-bench
MLCs in the new House will probably be
less likely to oppose ALP
legislation than they were in the
previous House, which scrutinized it
thoroughly but rarely rejected it. The
Government will only need the votes of 6
of the 13, an increase of only one over
the 5 of 9 that it needed before March,
and it has four more to choose from.

Alan
Corbett's surprise election in
1995 to represent ‘A Better Future
For Our Children’ appears to have
spawned a plethora of parties
registering catchy names at the last
moment and agreeing to put similar
parties ahead of larger
longer-established ones on their
registered voting tickets. Glenn Druery
of Republic 2001/People First Party
cheerfully admitted to bringing together
over 40 such groups for agreements about
preferences. Commentators that said his
election was almost certain were proved
wrong. The effect of the lodged tickets,
once the ALP and Coalition
had run out of surpluses, was to elect
Malcolm Jones. His Outdoor
Recreation Party gained only 7264
first preference votes.

David
Oldfield of the One Nation Party,
whose surplus of 63,275 first preference
votes was transferred to other
candidates and eventually helped elect
Peter Breen, was not the only critic of
the election of Malcolm Jones. Mr
Oldfield said he would ‘definitely’ vote
for change to the system of voting for
the Upper House to ensure that parties
or candidates that do not win, say, 3%
of the first preference vote are
immediately excluded from the count –
i.e. he favours a threshold.

Mr
Oldfield did not deal with the fact that
the 95.5% of a quota that helped Malcolm
Jones to be elected was made up of
transferred votes preferring Malcolm
Jones to any of the remaining One
Nation Party candidates. It would
have suited Mr Oldfield if those voters’
preference for Malcolm Jones over any
remaining One Nation candidates
could be overridden or set aside, but it
is by no means clear that it would have
suited any of those 154,453 voters,
otherwise they would have marked their
ballots differently. Yet, put bluntly,
that is what a ‘threshold’ means -
arbitrary deprivation of voters’ choice
and voting power, on a large scale!
Other critics of the election of anybody
from a party whose total of first
preference votes was so small also
tended to support a more widespread view
that the very large number of parties
almost certainly meant that most of them
were little more than titles, and that
very few voters would have had much idea
of what lay behind the titles. There are
now strong views, within the larger
parties that had candidates elected,
that changes are needed to deal with
these perceptions.

As Andrew
Gunter, a Vice-President of the PRSA’s
NSW Branch, was reported as saying in
the Sydney Morning Herald before
polling day, the simplest and most
desirable reform would be the
discontinuance of the system of Group
Voting Tickets and the associated
above-the-line voting. Dean
Jaensch, Professor of Politics at FlindersUniversity,
advocated that reform for South
Australia’s
Upper House in a recent Advertiser article.
Group Voting Tickets allow a
party, however small or tenuous, to
register one, two or three orders of
preferences, about which many voters
would be fairly innocent, but which come
into effect simply by a voter marking a
single box above-the-line. In
this 1999 poll each such order of
preferences, for each of the 80 parties
(twelve registered multiple lists in
1999), was a list of at least 15
candidates in order.

It
appears, not surprisingly, that the
masterminds of many small parties have
negotiated deals for registering their
preference orders, with the aim of
accumulating a quota for one of them.
Which of such tiny co-operating parties
might be elected is difficult to
predict, and is probably very much a
matter of fortune. Without Group
Voting Tickets, such deals would
be of little value, as it is fairly
unlikely that many voters would include
unknown entities among their marked
preferences when the very reasonable
formality provisions entrenched in the
NSW Constitution Act 1902
require that only 15 consecutive
preferences need to be marked for a
ballot-paper to be formal. Using the
Robson Rotation, as applies in Tasmanian
and ACT polls, would also remove
distortions due to ‘donkey voting’, and
voters mindlessly following how-to-vote
cards.

Unfortunately
the main reform sections of the Coalition
and One Nation are mentioning is
imposing thresholds, as discussed in our
article on Senator Coonan’s campaign,
which would be blatantly discriminatory
against the voting order marked by many
voters for small parties. Current MLCs
Breen, Corbett, Wong, M. Jones and
Rhiannon would not have been elected
with such a provision in force.

Another
possible reform, suggested by
psephologist Malcolm Mackerras, is to
reduce what he terms ‘district
magnitude’ - the number of vacancies per
electoral district. That is not
inherently unfair provided that the
number is not made unnecessarily or
artificially low. As there are currently
21 vacancies at each poll now, the
simplest such change would be to divide
NSW into three 7-member Upper House
provinces, but there is no need to do
that until the more pressing and sounder
reform of discontinuing Group Voting
Tickets has occurred. It may well
be found that that reform is enough, and
that there is no justification for
reducing voters’ choice by reducing the
‘district magnitude’, although the
introduction of some geographic
relationship with particular voters, and
the discouragement of groups with
excessively narrowly-focussed ideology
might give the 7-member model some broad
appeal.

Former
Democrat and now Green Independent Hon.
Richard Jones MLC has offered to chair a
committee to review the electoral
legislation for the Upper House.
Fortunately the key electoral provisions
are contained in Schedule 6 of the Constitution
Act 1902,and that Schedule
cannot be changed without a
referendum.

Unfair
House of Representatives outcomes, so
Australian Democrats float a Top-up
Scheme

The
Australian Democrats have long had a
policy that elections to the House of
Representatives and legislatures in
the states and territories should be
counted by the quota-preferential form
of proportional representation. The Hare-Clark system of
proportional representation used by Tasmania and
the ACT is Australia’s
best example of a quota-preferential
system being successfully used for
elections to governing houses. It has
been in continuous and popular use for
Tasmania’s
House of Assembly since the late 19th
century. This form of proportional
representation is widely used in
Australian democracy, as most upper
houses use it also, as do
municipalities in most of the states,
including the capital cities of those
states.

That policy
has been democratically adopted within
the party by postal ballot of its
national membership. There are
mentions in the Senate Hansard over a
number of years, by various AD
senators, of the party’s policy in
favour of that specific form of
proportional representation. Some of
those statements are shown in full on
the PRSA’s Web site. Such memorable
former Democrat senators as Michael
Macklin, David Vigor, John Siddons,
John Coulter, Janet Powell and Cheryl
Kernot, three of whom are former
leaders of the party, have made
publicly reported statements
championing the official Australian
Democrats policy.

In her speech
to the National Conference on 23rd
January, Australian Democrats Leader
Senator Meg Lees pointed out that in
1998, just as in four of the previous
19 elections, the "wrong" party - the
one receiving a minority of the vote
after distribution of preferences -
was declared the winner in the House
of Representatives. She added that in
each instance the winner was the
incumbent government and asked 'How
much longer should we have to tolerate
an electoral system that allows an
incumbent government effectively to
deny power to a more popular
opposition?'

She said 'It
is time to make both houses of the
parliament truly representative of the
people's wishes. Optimally, I would
like to see the House of
Representatives selected on a
proportional basis, the voting system
of choice, in one form or another, of
most western democracies. This system
ensures that the parliament truly
reflects the views of the electorate
at large. But, I am realistic enough
to know that the major parties would
never accept this.’

Senator Lees
declared that the mixed electoral
system recommended by the Jenkins
Commission in the United Kingdom
should be considered for Australia’s
House of Representatives. That system
includes using single member
districts, as in the House of
Representatives, but would also
provide for the election of some MHRs
on a party list basis, for the purpose
of making the party balance in the
House closer to that in the
electorate.

Such
proposals do nothing about the
problems of safe seats and the
concentration by parties aspiring to
government on a handful of marginal
seats at each election. They also do
nothing to improve voters' effective
participation in determining the
composition of the Parliament. Such
top-up systems would also run the risk
of a constitutional challenge under
Section 24 of the Constitution, as all
MHRs must be ‘chosen directly by the
people’.

Fortunately
the proposals by Senator Lees do not
seem to have been taken up by anybody.